Today’s Pre-Trial Hearing in the Durham-Sussmann Case

I attended a pre-trial hearing in the Durham-Sussmann case this afternoon at which a litany of evidentiary issues were discussed, many without resolution. It was far too weedy/incremental for a general-reader news article, but here’s my impression of takeaways for enthusiasts. /1

Team Durham (lead prosecutor Andrew DeFilippis) will call Perkins Coie’s managing partner to discuss a 2018 Perkins statement that Sussmann’s FBI meeting was on behalf of a client with no connection to the Clinton campaign. Sussmann apparently helped draft that statement. /2

One chunk of evidence will be Sussmann’s testimony before the House Intel Cmte. Judge Cooper said prosecutors can ask whether Sussmann mentioned the Clinton campaign & on cross defense can point out that no one asked him about it. Not clear (to me) who the witness will be. /3

DeFilippis says prosecutors no longer intend to make an issue of Sussmann deleting certain data from his law firm work phone before turning it in. (They had accused him of violating a firm preservation policy; defense then dug up the actual policy showing it was no violation.) /4

A defense lawyer said they don’t intend to introduce evidence alleging political bias on behalf of the Durham investigation. /5

Judge Cooper said he would exclude, as hearsay and duplicative evidence, a Clinton campaign tweet about the Alfa Bank suspicions. /6

A defense lawyer revealed – I think this is new – that “weeks” before Sussmann’s February 2017 CIA meeting on the Yotaphone suspicions, an FBI agent had recommended closing the bureau’s inquiry into the Alfa Bank suspicions. /7

The defense had asked for portions of the indictment to be struck from the record. Judge Cooper said it was not his practice to show the jury the indictment at all, so that took care of that. /8

Re Perkins Coie emails whose headers Durham obtained, but whose contents were withheld under attorney-client privilege, the judge 1st said that prosecutors could show them to the jury but not tell the jury that the reason for the redactions was a privilege claim. But … /9

…then a defense lawyer complained that showing the jury large amounts of black would be prejudicial and invite speculation, and the judge seemed to suggest that they could be reformulated to avoid that. It was not clear to me whether this was a ruling or just a musing. /10

Re defense request for immunity for Joffe, the judge was reluctant to go there and reluctant not to take at face value Durham’s claim that he remains at risk of prosecution even though the CIA meeting was >5 yrs ago. …more/11

Notably, DeFilippis mentioned a govt contracting fraud law w/ a longer statute of limitations. …. more 12

It remains unclear (to me) whether the judge will ask for an in camera review of the basis for prosecutors telling Joffe that he remains at risk (meaning he’d take the 5th & not testify about his understanding of whether Sussmann went to the FBI *on his behalf* as a client.) /13

On notes by two of Jim Baker’s FBI colleagues (Bill Priestap and Tricia Anderson) to whom he spoke after Sussmann, both reflecting no client, judge said won’t admit them as official evidence but will still likely permit them to be read to jury under a hearsay exception. /14

On the emails among the cybersecurity researchers as they developed the Alfa Bank DNS data suspicions, which Sussmann was not a party to, the judge signaled he is reluctant to let them in. …more/15

DeFilippis argued those should be admissible as statements by conspirators or participants in a joint enterprise. Judge said his reading of the cases is that’s never happened when there’s no charged conspiracy & the alleged joint enterprise was not a crime. But no ruling yet. /16

DeFilippis acknowledged that Chris Steele is not going to be a witness (since he’s not in the US). Similar arguments regarding to what extent Steele & dossier stuff can be brought in under the prosecution’s joint enterprise theory. Also no ruling yet. /17

There’s some evidence that still needs to undergo Classified Information Procedures Act (CIPA) substitution process. Defense doesn’t have the clearances yet to get into the SCIF and look at it. Judge warned that the clock is ticking. (Trial starts mid May.)/18

DeFilippis sought clarity that Judge Cooper will let discussion of CIA/Yotaphone meeting in, but set parameters on it. Judge affirmed.

So judge will issue a written ruling sorting through some of these; others may be decided at the trial depending on how things go.

Originally tweeted by Charlie Savage (@charlie_savage) on April 27, 2022.